Tackling the Gender Wage Gap: 2 Recent Amicus Briefs to 9th Circuit Court

October 7. 2019
Jess Eagle

ERA recently filed briefs on behalf of women’s and workers’ groups nationwide in two significant equal pay cases that are pending in the 9th Circuit Court of Appeals.

In both cases, ERA and amici urge the Court to broadly interpret federal equal pay laws in order to actually address specific employment practices that allow the gender wage gap to persist. Read more about our arguments below.

Relying on prior salary perpetuates pay discrimination

On September 20, we continued to support Fresno education specialist Aileen Rizo, whose long battle for equal pay has been considered by the 9th Circuit Court of Appeals twice before, and is being reviewed a third time after the U.S. Supreme Court vacated the en banc opinion written by the late Hon. Stephen Reinhardt and sent it back to the Ninth Circuit earlier this year.

[I]t is illogical to conclude that Congress intended to allow employers to justify violations based on the historical wage inequities that the law was enacted to eradicate in the first place. — ERA in our amicus brief to the 9th Circuit Court of Appeals

Judge Reinhardt’s opinion — expressing the unanimous opinion of all eleven 9th Circuit judges on the en banc panel — strongly favored ERA’s argument that a person’s prior salary cannot be used as an excuse to justify paying them less than someone of the opposite sex for equal work. This important ruling drew on arguments that ERA had advanced in an amicus brief filed in May 2017, which highlighted how using prior salary to determine a new hire’s pay allows pay discrimination to follow women and people of color from job to job.

This time around, ERA submitted a second amicus brief, signed by 21 other workers’- and women’s-rights organizations, building on our original argument. We emphasize that, if the court agrees employers should not be able to rely on prior salary alone to justify a pay differential, then they should not be able to rely on prior salary at all to justify paying someone less — even in combination with other legitimate factors like differing levels of prior experience or education — because it perpetuates gender discrimination.

 Our brief reminds the Court of why Congress passed the federal Equal Pay Act 56 years ago:

• “[I]t is illogical to conclude that Congress intended to allow employers to justify violations based on the historical wage inequities that the law was enacted to eradicate in the first place.”

Market forces are no excuse for unequal pay

On September 30, we teamed up with Lieff Cabraser Heimann & Bernstein to file another amicus brief with the 9th Circuit Court of Appeals in Freyd v. Univ. of Oregon, supporting psychology professor Jennifer Freyd, who is appealing the dismissal of her equal pay and gender discrimination claims against the University of Oregon. Our amicus brief was joined by 47 women’s, civil, and workers’ rights organizations as well as 57 professors.

Dr. Freyd, a renowned psychology professor who is widely recognized as a leading scholar in her field, sued the University of Oregon after learning that she was being paid substantially less than male colleagues in her department who hold the same positions, have less seniority, and are no more accomplished. The University’s own self-study and an external review both concluded that there were significant gender-based pay disparities among full professors in Freyd’s department, and that these differences were due to the University’s practice of giving  “retention raises” to faculty members who pursued outside offers and used them to negotiate higher pay. In Freyd’s department, only 5 of 26 retention raises went to women, even though they comprise half of the faculty. The district court nonetheless dismissed her claims, finding that she failed to show she did “equal work” to her male colleagues, and that the data on retention raises going mostly to men was not “statistically significant” enough to prove discrimination.

These two cases present an opportunity for the Court to affirm that the Equal Pay Act of 1963 is not a dead letter, even if its central promise — of equal pay for equal work — has yet to be fulfilled. Millions of working women and their families that count on them can’t afford to wait another 60 years for equal pay. — Jennifer Reisch, ERA Legal Director

As we did in Rizo, our amicus brief in Freyd discusses how important it is for courts to broadly interpret equal pay laws to protect workers. We argue that allowing an employer to rely on market-based excuses to justify pay differences between women and men doing the same job contradicts the purpose of equal pay laws themselves, and perpetuates the gender wage gap:

• “While the [Equal Pay Act] does not prohibit an employer from offering retention raises per se, this Court should join others in concluding that an employer cannot proffer such a practice…to justify paying a woman less for equal work— especially where it fails to present evidence that women are offered the same opportunities to negotiate as their male counterparts.
• …Simply put: a desire to attract and retain ‘the best and the brightest’ does not relieve an employer of its legal duty to provide equal pay for equal work.”

“These two cases present an opportunity for the Court to affirm that the Equal Pay Act of 1963 is not a dead letter, even if its central promise — of equal pay for equal work — has yet to be fulfilled,”  said ERA Legal Director Jennifer Reisch. “Millions of working women and their families that count on them can’t afford to wait another 60 years for equal pay.”